Shashi Bushan vs Karam Chand

Adarsh Kumar Goel, J.—The Petitioner filed a complaint against Respondent No. 1 under Sections 406, 419 and 420 IPC alleging that Respondent No. 1 was one of the partners but the bank account was to be operated by the Petitioner only. The accused received payment for the goods sold and deposited the amount in his own account, describing himself as sole proprietor of the firm. A direction was issued for registering the complaint as FIR and after investigation, challan was filed.

The trial Court discharged Respondent No. 1. It was held that a partner has undefined ownership along with other partners over all the assets of the partnership and the chooses to use any of them for his own purposes, he may be accountable civilly but it will not amount to criminal offence. Reliance was placed on judgments of this Court in Parmodh Kumar v. Satish Kumar, 1984 Cri LT 3, Ramesh Kumar and Anr. v. The State of Haryana, 1983 (1) C.L.R.97 and a judgment of the Calcutta High Court in Tapan Kumar Mitra Vs. Manick Lal Dey, judgment of the Hon''ble Supreme Court in R.K. Dalmia Vs. Delhi Administration, , was distinguished.

The view taken by this Court is in line with the decisions of the Apex Court in Velji Raghavji Patel Vs. State of Maharashtra, and Anil Saran Vs. State of Bihar and another,

Learned Counsel for the Petitioner submitted that the fact that the Petitioner alone was entitled to open the bank account and the accused opened the bank account by describing himself as proprietor, was enough to infer dishonest intention.

This contention cannot be accepted. The words "entrustment of dominion" used in Section 405 require the prosecution to prove that dominion over the assets or a particular asset was entrusted to the accused partner by a special agreement. In absence of a special agreement, a partner receiving money belonging to the partnership, cannot be said to have received it in fiduciary capacity. In the present case, the accused partner received the money as a partner and there was no entrustment of dominion over the said amount under any special agreement. The accused may be required to account for the money but that itself is not enough to hold that offence of misappropriation has been committed. The view taken by the trial Court cannot, thus, be held to be illegal or perverse.

No interference is called for in exercise of revisional jurisdiction.

The petition is dismissed.